Reform(aliz)ing Copyright
BCLT, April 18-19, 2013
Three Steps
Towards Formalities
Prof. Martin Senftleben
VU University Amsterdam
Bird & Bird, The Hague
Contents
• Prohibition of Formalities (1)
– Internal Conditions
– Toolkit for Reformalization
• Three-Step Test (2)
– Development in International Law
– Field of Application
• Breathing Space (3)
Prohibition of Formalities
Article 5(2) Berne Convention
‘The enjoyment and the exercise of these rights
shall not be subject to any formality; such
enjoyment and such exercise shall be independent
of the existence of protection in the country of
origin of the work.’
• enjoyment = coming into being
• exercise = enforcement of rights
Scope of the Prohibition
external conditions
covered
internal conditions
NOT covered
affecting protection
‘as such’
extent, quality,
contents of protection
Internal Conditions
Toolkit for reformalizing copyright
exemption
of use
term of
protection
morality,
public order,
abuse of rights
subject matter of
protection
Exclusions from protection
• idea/expression dichotomy
• originality test NOT harmonized
• news of the day and miscellaneous facts
having the character of mere items of press
information (Art. 2(8) BC: mandatory)
• official texts of a legislative, administrative
and legal nature, and official translations of
such texts (Art. 2(4) BC: optional)
Exclusions from protection
• political speeches and speeches delivered
in the course of legal proceedings
(Art. 2bis(1) BC: optional)
• no protection unless fixed in some material
form (Art. 2(2) BC: optional)
Term of protection (Art. 7 BC)
• ‘The term of protection [...] shall be the life
of the author and fifty years after his death.’
– in many countries: 70 years post mortem
• cinematographic works
– making available + 50 years (optional)
• anonymous or pseudonymous works
– making available + 50 years
• photographic works, works of applied art
– making available + 25 years
– but see Art. 9 WCT
Exemption of use
• quotations, press summaries (Art. 10(1) BC)
• articles on current topics (Art. 10bis(1) BC)
• lectures, addresses, works of the same
nature delivered in public (Art. 2bis(2) BC)
• reporting of current events (Art. 10bis(2) BC)
• illustrations for teaching (Art. 10(2) BC)
Exemption of use
• compulsory licenses concerning
broadcasting, and wireless or loudspeaker
communications (Art. 11bis(2) BC)
• ephemeral recordings made by broadcasting
organizations (Art. 11bis(3) BC)
Public order, morality, abuse of rights
‘The provisions of this Convention cannot in any
way affect the right of the Government of each
country of the Union to permit, to control, or to
prohibit, by legislation or regulation, the
circulation, presentation, or exhibition of any
work or production in regard to which the
competent authority may find it necessary to
exercise that right.’ (Art. 17 BC)
Three-Step Test
Role of the three-step test
basis for further
exclusions,
exemptions etc.?
restriction of existing
exclusions,
exemptions etc.?
Article 9(2) Berne Convention
‘It shall be a matter for legislation in the countries
of the Union to permit the reproduction of [literary
and artistic] works in certain special cases,
provided that such reproduction does not conflict
with a normal exploitation of the work and does
not unreasonably prejudice the legitimate interests
of the author.’
= first three-step test in international
copyright law
Direct basis for national exemptions
general
right of
reproduction
compliance
with Art. 9(2) BC
Family picture
Article 9(2) BC
Article 13 TRIPS
Article 10 WCT
Article 13 TRIPS
‘Members shall confine limitations or exceptions to
exclusive rights to certain special cases which do
not conflict with a normal exploitation of the work
and do not unreasonably prejudice the legitimate
interests of the right holder.’
= three-step test becomes general yardstick
for the permissibility of limitations and
exceptions
Direct basis for limitations and exceptions
(same function: Article 10(1) WCT)
rights newly
granted in
TRIPS
compliance
with Art. 13
TRIPS
Additional control instrument
(same function: Article 10(2) WCT)
Berne
Convention
rights
right of
quotation,
illustration for
teaching
compliance
with Art. 13
TRIPS
Field of Application
All of this covered?
exemption
of use
term of
protection
morality,
public order,
abuse of rights
subject matter of
protection
Or only this?
exemption
of use
Would a broad field of application help?
• Article 13 TRIPS as an engine of
reformalization?
• introduction of further exclusions?
– If existing exclusions pass the three-step test,
why not having further exclusions?
• more flexible approach to term of
protection?
– If a work is no longer offered on the market,
why not putting an end to protection?
Art. 9(1) TRIPS, Art. 20 BC
‘The Governments of the countries of the Union
reserve the right to enter into special agreements
among themselves, in so far as such agreements
grant to authors more extensive rights than those
granted by the Convention, or contain other
provisions not contrary to this Convention.’
= TRIPS a special agreement in this sense
• no derogation from protection standard
reached in the Berne Convention
The better view
exemption
of use
Breathing Space
Contents of the three-step test
• certain special case
– specific form of use, limited number of beneficiaries
– considering policy justification preferable
• no conflict with a normal exploitation
– currently exploited and potential future markets
– but only markets of considerable importance
• no unreasonable prejudice to legitimate interests
– final part of the proportionality test
– reduction to reasonable level by providing for the
payment of equitable remuneration
Direct basis for national exemptions
exclusive right
recognized
internationally
compliance
with the
three-step test
• reproduction
(Art. 9(1) BC)
• making available
(Art. 8 WCT)
Berne provisions as prototypes
‘It shall be a matter for legislation in the countries
of the Union to determine the conditions under
which [broadcasting and related rights] may be
exercised… They shall not in any circumstances
be prejudicial to the moral rights of the author, nor
to his right to obtain equitable remuneration which,
in the absence of agreement, shall be fixed by
competent authority.’ (Art. 11bis(2) BC)
= mandatory licensing model
Berne provisions as prototypes
‘It shall be a matter for legislation in the countries of
the Union to permit the reproduction by the press,
the broadcasting or the communication to the public
by wire of articles published in newspapers or
periodicals on current economic, political or
religious topics, and of broadcast works of the
same character, in cases in which the reproduction,
broadcasting or such communication thereof is not
expressly reserved.’ (Art. 10bis(1) BC)
= opt-out model
No conflict with a normal exploitation?
impacts on the core
business of news
providers
nonetheless
permissible because
of formality?
Title of the presentation
Agreed Statement Concerning Art. 10 WCT
‘It is understood that the provisions of Article 10 permit
Contracting Parties to carry forward and appropriately
extend into the digital environment limitations and
exceptions in their national laws which have been
considered acceptable under the Berne Convention.’
‘Similarly, these provisions should be understood to
permit Contracting Parties to devise new exceptions
and limitations that are appropriate in the digital
network environment.’
The end.
contact: m.r.f.senftleben@vu.nl